Bereavement damages – a geographical injustice?

26 Sep 2013

Following a fatal accident, bereavement damages can be claimed on behalf of the deceased’s estate, from whoever has negligently caused the death.

In England & Wales, the claim for bereavement is strictly limited. It can only be claimed by the spouse of the deceased or, if the deceased was under 18, by their parents.  These restrictions have been the subject of much criticism. They prohibit a child being entitled to claim for the loss of a parent, and parents cannot claim for the loss of a son or daughter, if they were 18 or over at the time of death.

The situation in England and Wales can be contrasted with the system in Scotland. The Scottish system for bereavement allows for a far wider pool of relatives to claim. In addition, the system considers and values each case on its merits.

In England and Wales a fixed amount of damages are awarded for bereavement – the figure is currently £12,980.

A recent survey commissioned by the Association of Personal Injury Lawyers (APIL) found that 80% viewed the Scottish system for bereavement damages as being fairer, prompting calls for the law in the rest of the UK to be reviewed.

Matthew Stockwell, president of APIL said “For years we have been calling for the law to be changed in this area, and this new survey has shown just how far out of step with public opinion the system for awarding bereavement damages really is.”

“Everyone knows, of course, that nothing can ever replace a loved one who has died, but it’s important to remember that we are talking here about bereavement caused by the negligence of another party. The fact that the death is needless can only increase the sense of pain and loss. In Scotland, cases are taken on their merits, damages are generally higher, and the law is much more flexible about who can receive them.”

The vast majority of those surveyed believed the fixed sum in England and Wales is not high enough, and 57% felt a figure of more than £100,000 would be appropriate. Many respondents also suggested the list of people who should be eligible to receive bereavement damages should be extended to include, for example, the parents of a child who is killed, regardless of the child’s age; children (including adopted children) of the person killed, regardless of the child’s age; the co-habitee of the person killed, and the fiancé of the person killed. None of these people are currently eligible for bereavement damages in England and Wales, while most of them are entitled to claim damages in Scotland.

Matthew Stockwell added, “It is particularly distasteful to me that parents of a child under the age of 18 should be entitled to bereavement damages but, once the child is 18, they are not. It is unnatural for a parent to suffer the loss of a child, and that loss is no less if the child happens to be over the age of 18.”

Tom Hartigan, Associate in Trethowans personal injury team, commented: “I have dealt with many fatal accidents claims under the current system in England and Wales. It is extremely difficult to explain to a bereaved husband or wife that they are only entitled to £12,980 for the loss of their spouse. It is even more difficult to inform a parent who has lost a child that they cannot claim anything at all if the child was 18 or over.  The current system is unfair and unjust. I hope that calls for a system more on a par with the current laws in Scotland will be heeded soon”.